Citation Nr: 21022788 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 16-27 812 DATE: April 19, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected PTSD (previously evaluated as other specified depressive disorder with other specified anxiety disorder), is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1989 to May 1993. This case is before the Board of Veterans’ Appeals (Board) on appeal from an April 2017 Regional Office (RO) rating decision.  In that rating decision, the RO denied entitlement to service connection for obstructive sleep apnea. The Veteran’s notice of disagreement (NOD) was received in May 2017.  The RO issued a statement of the case (SOC) in November 2017.  The Veteran’s VA Form 9, substantive appeal to the Board, was received in November 2017. In August 2016, the RO denied service connection for obstructive sleep apnea. Although the Veteran did not appeal this decision, the RO received new and material evidence within one year of the August 2016 decision, specifically medical articles that indicate there may be an association between psychiatric disorder and sleep apnea, which rendered it non-final. 38 C.F.R. § 3.156(b). As such, new and material evidence is not required in this case. Unfortunately, the Board finds that another remand is necessary as there was not substantial compliance with the November 2018 remand directives and a new VA medical opinion is necessary prior to adjudicating the claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions). Specifically, in the November 2018 remand, the Board determined that the July 2016 private medical opinion and October 2016 VA medical opinion were not sufficient to make an informed decision with respect to the issue of whether the Veteran’s obstructed sleep apnea is secondary to his service-connected PTSD (previously evaluated as other specified depressive disorder with other specified anxiety disorder). The Board remanded the claim to obtain a new medical opinion. A physician in August 2020 VA medical opinion report provided the medical opinion that the Veteran’s sleep apnea is not related to the established diagnosis of other specified depressive disorder with other specified anxiety disorder. The physician explained that the Veteran had a sleep study in June 2016 and was diagnosed with obstructive sleep apnea, unrelated to the established diagnosis. The VA physician also provided the medical opinion that the Veteran’s sleep apnea was less likely than not aggravated beyond its natural progression by the Veteran’s service-connected other specified depressive disorder with other specified anxiety disorder, because there is not enough evidence to meet a 50 percent threshold of proof that these conditions aggravated the Veteran’s obstructive sleep apnea. The Board finds that this medical opinion is inadequate as the physician only noted that there is not enough evidence to meet a 50 percent threshold of proof that these conditions aggravated the Veteran’s obstructive sleep apnea; the examiner did not provide a rationale for this conclusion. The August 2020 VA physician also did not address or discuss the positive July 2016 private medical opinion as part of the rationale and the physician did not address the medical article submitted by the Veteran in May 2017 that discusses a study that indicated there was an association of psychiatric disorders and sleep apnea in a large cohort. The matters are REMANDED for the following action: Obtain a VA medical opinion with respect to the Veteran’s service connection claim for sleep apnea by an appropriate medical specialist. Only arrange for the Veteran to undergo an examination if one is deemed necessary in the judgment of the medical specialist designated to provide the medical opinion. The electronic claims file, including a copy of this remand, must be made available to the medical specialist for review, and the medical specialist should indicate that the claims folder was reviewed. The medical specialist is requested to provide an opinion as to whether the Veteran’s sleep apnea is at least as likely as not (i.e., a 50 percent or more probability) either (a) caused by, or (b) aggravated (i.e., worsened) by his service-connected disabilities, to include PTSD (previously evaluated as other specified depressive disorder with other specified anxiety disorder) and any medication to treat such disorder. If aggravation is found, the examiner must attempt to establish a baseline level of severity of obstructive sleep apnea prior to aggravation by service-connected PTSD. Furthermore, the medical specialist must specifically address and discuss the July 2016 private medical opinion, any medical studies referenced in the July 2016 medical opinion, and as well as, the medical article submitted by the Veteran in May 2017. The examiner should also address any and all other pertinent evidence of record, to include the Veteran’s lay statements and contentions. An explanation must be given for any opinion expressed and the foundation for all conclusions should be clearly set forth. It would be helpful if the medical specialist discussed medical treatises, articles, and/or studies as part of his or her opinion. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Berry, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.